This
case requires us to decide whether an employer's effort
to keep certain information confidential ran afoul of its
employees' established rights under federal labor law to
share employment-related information with one another in an
effort to improve their lot. The National Labor Relations
Board concluded that petitioner Banner Health's
Confidentiality Agreement unlawfully barred its workers from
sharing information at the heart of labor law's concern:
information about salaries and employee discipline. The Board
also determined that Banner unlawfully maintained a
categorical policy of asking employees not to discuss certain
kinds of human resources investigations. Such investigative
nondisclosure policies, the Board held, may only be applied
on a case-by-case basis following a threshold determination
that confidentiality is necessary to the particular
investigation.

The
Board's invalidation of the Confidentiality Agreement was
reasonable and supported by substantial evidence, and we
therefore grant the application for enforcement on that
issue. But, because the record lacks substantial evidence
that Banner actually maintained a categorical investigative
nondisclosure policy, we grant the petition for review and
deny enforcement as to that portion of the Board's Order.

I.
Background

Banner
Health is a large, nonprofit healthcare system that includes
Banner Estrella Medical Center in Phoenix, AZ. James Navarro
worked at Banner Estrella sterilizing surgical equipment. On
February 19, 2011, Navarro learned that he could not use the
autoclave-a large, pressurized steam sterilizer normally used
for sterilizing reusable medical instruments-because the
hospital's steampipe needed to be fixed. He was
instructed to use hot water from the coffee machine in the
break room for the first step in the cleaning process, and
then to use a low-temperature sterilizer with hydrogen
peroxide. Navarro was concerned that those procedures
violated established protocol. He raised questions with
various supervisors and did some quick research that did not
allay his concerns. After confirming there were adequate
clean instruments available for the day's scheduled
surgeries and deliveries, Navarro did not sterilize
additional instruments. His supervisor was not pleased. A
couple of days later, Navarro visited Banner's human
resources consultant, JoAnn Odell, reporting his discomfort
with the prescribed procedures and expressing concern for his
job. That afternoon, Navarro's supervisor gave him a
"nondisciplinary coaching" and, a few days later, a
negative yearly evaluation.

Navarro
filed an unfair labor practice charge with the Board,
prompting the Board's Regional Director to file a
retaliation complaint against Banner. Based on documents
unearthed during discovery, the Regional Director amended the
complaint to include claims that Banner (1) made employees
sign an overbroad Confidentiality Agreement and (2)
maintained an overbroad rule requiring nondisclosure of
investigative interviews.

The
main evidence supporting the first claim was the
Confidentiality Agreement itself. The Agreement defined
"confidential information" to include, as relevant
here, "[p]rivate employee information (such as salaries,
disciplinary action, etc.) that is not shared by the
employee." J.A. 86. The Agreement further stated that
"[k]eeping this kind of information private and
confidential is so important that if I fail to do so, I
understand that I could be subject to corrective action,
including termination and possibly legal action."
Id. According to Odell, all new Banner hires were
required to sign this Agreement.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
primary evidence in support of the charge that Banner
maintained an overbroad investigative nondisclosure policy
was an "Interview of Complainant" form that Odell
referred to during her interview of Navarro. That document
contained prepared statements and questions for human
resources interviewers to read, along with space for notes.
It opened with an "Introduction for all interviews,
" part of which stated: "I ask you not to discuss
this with your coworkers while this investigation is going
on, for this reason, when people are talking it is difficult
to do a fair investigation and separate facts from
rumors." J.A. 81. The only other relevant evidence came
from Odell&#39;s rather general and ambiguous testimony about
how the interview form was used. Odell testified that Banner
employees were never given a copy of that form and that she
"request[ed]" nondisclosure "[h]alf a dozen
[times], maybe" in her 13 months at Banner, and only
"in the more sensitive situations." See
Tr. 186, 193-96, 258-60. She said that, notwithstanding the
form&#39;s reference to "all interviews, " she did
not "necessarily" request nondisclosure in every
interview and did not do so of Navarro. Id. at 194.
(Later in the transcript, Odell appears to contradict ...

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